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[2009] ZAGPPHC 30
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Kidson and Another v Jimspeed Enterprises CC and Others (38574/08) [2009] ZAGPPHC 30 (20 April 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Dates
: 26 February
20 April 2009 Case no:
38574/08
In
the matter between:
W
F KIDSON
FIRST APPLICANT
J
C KIDSON
SECOND APPLICANT
and
JIMSPEED
ENTERPRISES CC
FIRST RESPONDENT
JS
SINCLAIR N.O. SECOND RESPONDENT
REGISTRAR
OF DEEDS PRETORIA
THIRD
RESPONDENT
Habitatio
– right does not lapse upon destruction of home – person entitled
to habitatio may re-build home or alternative lodgings.
JUDGMENT
Van
Rooyen AJ
[1]
The Kidsons sold their farm in 1998 to the First Respondent
(“Jimspeed”) for R450 000. A right of
habitatio
over
the farmstead and outbuilding
was
reserved for Mr Kidson for as long as he lived.
1
He is married in community of property with the Second Applicant.
This right was duly registered against the title deed of the
farm.
Jimspeed, however, according to the Kidsons, made life unbearable for
them and they packed up and left. Jimspeed thereafter
sold the farm
to Futurama 143 CC which, in turn, sold it to a family trust of which
Mr JS Sinclair is the trustee (“Sinclair”).
As a result of mining
activities on the farm where the Kidsons have lived in the mean time,
they have to leave the home in which
they are presently living. They
now wish to return to the house on their erstwhile farm. They had,
earlier, discovered that Jimspeed
had destroyed the house and
outbuilding. They also heard that the farm had been sold to Sinclair.
It is common cause that Jimspeed
has been liquidated. The Kidsons
describe themselves as pensioners who are struggling to make ends
meet. They are unable to afford
accommodation in town, “as the
price for suitable accommodation is just too high.” They now seek
the Court’s assistance in
declaring that their rights still exist
as registered.
[2]
Sinclair is not prepared to permit the Kidsons any rights to the farm
and states that he was unaware of the
habitatio
when he purchased the property from Futurama.
In
limine
it was argued on his behalf by Mr
Greyling
that Futurama and the liquidator of Jimspeed should also have been
joined in the present proceedings. Counsel also argued that
the
Kidsons had abandoned their rights by having left the farm and having
sued Jimspeed in a magistrate’s court for damages and
other
remedies. Lastly it was argued that when the house was demolished the
habitatio
also
expired. This was in accordance with the usual rule in cases of
servitudes that when the servient tenement is destroyed, the
right
also expires.
[3]
Ms
Erasmus
,
for the Kidsons, argued that there was no evidence of abandonment and
that the relevant parties had been joined. In fact, the
papers were
delivered to the firm which acted as the liquidator for Jimspeed and
they had not reacted. She also argued that there
was insufficient
evidence of abandonment. She was, however, in doubt whether the
habitatio
had not fallen away, in the light of her reading of the authorities.
Evaluation
[4]
Mr
GS
Maritz
,
on whose heads Ms
Erasmus
argued the matter, referred to
Salmon
v
Lamb’s
Executor and Naidoo
2
as authority for the proposition that the destruction of the dominant
or servient tenement did not mean that the structure could
not be
rebuilt. The judgment, however, does not support this principle. It
was held that when a wall of a hotel is broken down
so that the wall
may be strengthened, the owner of that building is entitled to do
that in spite of the fact that the roof of the
neighbour was attached
to that wall. The judgment does not go further than this and state
that the owner of the roof may, afterwards,
attach the roof to the
wall again.
[5]
I agree with Ms
Erasmus
that the Kidsons did not abandon the farmstead (incorrectly called a
“farmstall” in the registered transfer of ownership).
The mere
fact that they approached the magistrate’s court serves to
accentuate their belief in their right to
habitatio.
Habitatio
has neither lapsed as a consequence of the fulfilment of the
requirements of the
Prescription Act 68 of 1969
nor was any
cancellation of the personal servitude effected by any notarial deed
as precribed by
section 68(1)
or (2) of the
Deeds Registries Act 47
of 1937
. But for compliance with all the requirements of
prescription, the mere non-user of the right of dwelling does not
automatically
lead to the disappearance or lapse of the right.
3
It
was also not necessary to have joined Futurama, who had sold to
Sinclair. The question is not what took place in their negotiations

and whether Sinclair knew about the
habitatio
or whether he might have a claim against Futurama, but whether the
ius
in
rem
,
as registered, still exists objectively in spite of the destruction
of the house and outbuilding by Jimspeed.
[6]
Habitatio
has
since time immemorial been recognized as one of the personal
servitudes, in addition to usufruct and use.
4
In
Galant
v Mahonga
5
Sampson J summed up the position well:
“
I
have already held that her right amounted to
habitatio
.
At one time in Roman law it was doubtful whether
habitatio
was a distinct servitude; but Justinian (
Inst
.
2.5.2-5) decided to allow it to be classed among personal servitudes,
although it seemed to the jurists to stand as a right by
itself. See
also
D
.
7.8.10 C 3.33. The Roman-Dutch authorities accepted this law. Grotius
Introduction
(2.44.8) treats
habitatio
under
usus
,
and recognises the right to let. Van der Linden,
Institutes
(1.11.6) includes it under personal servitudes, and there never has,
I think, been a doubt that it is so regarded in our law to-day.
A
personal servitude differs from a real servitude because it is
attached to a person and not to a dominant tenement; but the right

comprises a part of dominium and is for that reason a jus in re which
founds an action
rei
vindicatio
.
The plaintiff, therefore, can sue in this action for the recovery of
her right against any owner of the land subject to the right.
In
regard to the claim for damages for the invasion of plaintiff's right
and deprivation of the enjoyment of her servitude by defendant's

action, it was contended that she had suffered the loss of her home
and had had to pasture her stock elsewhere. No special damages
were
proved or claimed in argument, but, general damages on the above
basis were asked for. Now
habitatio
is treated in the authorities as akin to use, and use was restricted
to bare enjoyment, and to what is necessary to enable the
free use to
be enjoyed. Justinian (
Inst
.,
2.5.2.) extended to
habitatio
the right to receive a guest in the house (I presume temporarily) and
allowed the owner of the servitude to reside in the house
with his
wife and children, and such persons as might be in his employ, and by
a decision allowed the power to let the right of
inhabiting to
others. Voet
ad
Pand
.
(7.8) does not throw any light on the extent of the right in regard
to the question at issue in this case, and indeed the general
trend
of the Roman-Dutch writers is to leave the matter where Justinian
placed it.”
[7]
Personal
servitudes have been classified, since Roman times, with praedial
servitudes, as limited real rights. In spite of the
personal
servitude’s connection to a particular person ( it cannot be
transferred or inherited) it is for all other purposes
a real right
and, as such, legally recognized property which is protected as an
asset by private law remedies. All real rights
have a
res
as
object. A
res
is of a tangible nature and does not amount to a mere air-space. Air
or space can, accordingly, never qualify as an object of a
ius
in rem.
Even in the sectional titles legislation the ownership of one of the
sections is described with reference to at least the middle
of the
walls, roof and floor between the sections.
6
[8]
The object of the right to
habitatio
(right of free residence) is the land which is subject to the limited
real right of
habitatio
.
That is why it is registered against the title deed of the
land
with cadastral precision as to which part of the land is subject to
the
habitatio
(as
in the conditions in Annexure B in the present matter, read with the
diagram 1126/199).The object of the limited
ius
in rem
is accordingly not the air which is encircled by the “four” walls
of the farmstead, but the land on which it is located. That
is why
the rented room in
Kain
v Khan
7
is not in itself the
res
,
since it is part of the building and,
superficies
solo cedit.
8
The
entitlements of the holder of the right of
habitatio
may, however, in that case be defined with reference to the
particular room as part of the building attached to the land as
object
of the real right.
[9]
When the person who has the right of
habitatio
abandons the right, it lapses. As a personal servitude it also lapses
on the death of the holder of the
habitatio
.
Before that the holder of the right may, of course, reach an
agreement with the owner of the burdened property to abandon his

limited real right and to accept as a
quid
pro quo
some compensation for this waiving of his limited real right. This
does not amount to a “transfer” of the limited real right
to the
owner, but will have the consequence that the erstwhile burden
encompassed in the limited real right falls away and the
entitlements
of the owner of the then unburdened ownership will automatically
return to the original unburdened position, thanks
to the elasticity
of the real right of ownership.
[10]
Van der Keessel states that according to De Groot’s discussion of
servitudes when either the servient or dominant land perishes,
the
right also lapses.
9
He, however, states that according to a statute of Harlem the
servitude would not lapse where one of them is destroyed by fire
or
in another manner and would consequently automatically revive should
the servient building be re-erected. Elsewhere, in 2.39.14,
he refers
to usufruct and states that where the character of the servient
tenement changes, for example, as a result of a flood
becomes a
riverbed, the servitude lapses. However, when the situation returns
to normal, the servitude comes to life again. To
my mind the
essential element for the lapse of the
habitatio
would be when a fundamental change in the land makes it impossible to
exercise a right of
habitatio
.
This is so since the land on which the house is situated is the true
object of the real right. When this approach is adopted,
it would,
with respect, be inconsistent to accept that when the house burns
down or is otherwise demolished, the right falls away.
10
The true test should be whether it has become impossible to rebuild
because, as a result of the mutation to the land itself, the
land has
become incapable of supporting any structure which can be utilised as
a dwelling. This would be supported by the Digest
text underlying
this thinking:
“Rei
mutatione interire usum fructum placet.”
11
I am of
the opinion that the two Van der Keessel texts referred to support
this approach: only when the servient tenement becomes
incapable of
serving, the servitude lapses. But the incapability must lie in the
land itself, not in the structure built on it.
If the structure is
destroyed and the land retains its original capacity to be burdened
as in the past, the servitude does not
lapse.
[11]
Generally it would also be inequitable to benefit the owner of the
servient tenement by cancellation of the limited real right
as a
burden to his ownership due to the mere destruction of the building
utilised as dwelling. The
ius
in re aliena
limits his or her ownership until the death of the person entitled to
the
habitatio
.
Why must it fall away by way of mere coincidence or destruction of
the structure on the land if it does not entail a mutation
of the
land (
rei
mutatione
)
as object of the right itself?
[12]
As indicated above, the owner of the burdened property can always
seek to reach an agreement with the holder of the limited
real right
to abandon his right against a reasonable mutually agreed
quid
pro quo
,
but he need not necessarily enjoy the benefit of an unburdened
ownership just because an uncontrolled bush fire (or a negligent
or
malicious predecessor in title) destroyed the structure that served
as dwelling for the holder of the
habitatio
.
[
13]
Mr
Maritz
argued in his heads, that the Court may also order the present owner
of the land or the liquidator to restore the farmstead and
the
outbuilding. Given the liquidation of Jimspeed as the purported
entity responsible for the demolition of the farmstead as dwelling,

this would seem academic even if that act of demolition fulfilled all
the requirements of a delict. The present owner can, however,
under
no circumstances be burdened with a quasi vicarious liability for
damages resulting from a previous owner’s unlawful acts.

Re-building is, in any case, not included in the Notice of Motion. It
is also foreign to
habitatio
as a limited real right, to entitle the holder of the servitude to
claim any positive action from the owner of the servient property.

The core of the owner’s duty is, indeed, inaction:
Servitutium
non ea natura est ut aliquid faciat quis . . . sed ut aliquid
patiatur aut non faciat
.
12
[14]
The above line of thinking is supported by decisions of the German
Courts, which were confronted with the question whether
the
devastation which the Second World War had brought about, removed the
servitudes (
Wohnrechte
)
which existed before the war.
13
Some lawyers argued that, as would be the case with a lessee who
cannot compel the landlord to re-erect the bombed building because

the contract of lease lapsed with the destruction of the leased
object, the destruction also put an end to the right to
habitatio
.
Westermann,
14
however, convincingly argues that the object of the
ius
in rem
was never the house as an integral part of the land, but that the
burden rested on the
land
and that is why the
habitatio
is registered against the land.
“Die
einseitige Abstellung auf die ‘Belastung des Gebäudes’ ...
übersieht, daß grundsätzlich das Grundstück belastet
ist. ‘Eine
Haftung an bestimmten Räumen’ ... ist nicht gegeben”
15
The land as object was not destroyed.
The
homestead is not an independent
res;
it
is fully dependent on the land on which it was erected. Wolf
16
motivates it well: “Die mögliche inhaltliche Beschränkung auf
einen Teil eines Gebäudes ändert nichts daran, daß das
Wohnungsrecht
am
ganzen Grundstück besteht
”(emphasis
added). The destruction caused by the bombardment did not destroy the
right when the bricks fell.
The
manner in which the person who is entitled to the
habitatio
will exercise his rights to set up a suitable structure to serve as
dwelling is entirely dependent on him or her. He or she may
not be
hindered in the process by the owner of the burdened land to exercise
his or her right. It is clear, however, that the holder
of the right
of
habitatio
cannot compel the owner of the burdened land to re-erect a structure
to serve as dwelling because that would be contrary to the

abovementioned principle of passivity.
17
[15]
In the light of the above, the following conclusion is reached on the
application of the applicants:
1.
When the farmstead and outbuilding were destroyed by Jimspeed the
right to
habitatio
did not lapse.
2. Applicants did not
abandon their right.
3.
It is irrelevant that Sinclair was not aware of the right to
habitatio
.
It is still
registered
against the title deed that forms part of the public registers at the
Deeds
Office.
4. The fact that the
condition only explicitly benefits Mr Kidson is irrelevant. The
Kidsons
are married in community of property and rights which he enjoys fall
in
the
community of property. However, the right is limited to his life and
when he
dies,
the
habitatio
lapses.
5.
The Kidsons are entitled to all the rights which
habitatio
grants them which would
include
the right to reach by vehicle the place where the house was on the
land
of
Sinclair (if the road has been destroyed, it may be remade by the
Kidsons as a
via
necessitatis
or
if that is no longer possible, an alternative route must be made
available
to them by Sinclair).
Habitatio
includes the right to have all the
benefits
which existed when the right was vested. The Kidsons are,
accordingly,
entitled
to restore the
status
quo
.
If they are unwilling to restore the house in
exactly the
same form, they would be entitled to build an alternative structure
or
even place
a prefabricated structure or a wooden house on the place where the
previous
structure had been. It need not even be an immovable structure, and
could
for
example be a caravan home. They have a right to
habitatio
on the said piece of
land
by whatever means. Of course, if certain Statutes or Regulations are
applicable
to
structures on that land, they would have to abide by them. If they
build an
immovable
structure, the structure becomes the property of Sinclair; obviously
subject
to the right of
habitatio
.
6.
Because some doubt was said to have existed originally concerning the
entitlement
of the holder of the right of
habitatio
to utilise the yard of the farmstead
for
purposes of a small vegetable or fruit garden etc, reference is made
to the
explicit
text in
Digesta
7.8.12.1 that confirms that the dweller is entitled to utilise
the
property for this purpose for his own subsistence, but is not
entitled to sell any
produce
to a third party.
18
ORDER
1.That
the “Certificate of United Title” (Sertifikaat van Verenigde
Titel) attached as Annexure “B” to the application
in this
matter and issued by the Registrar of Deeds on the 10
th
August 1999, and more specifically paragraph B on pages 3-4 thereof,
is valid and in force.
2.That
First and Second Applicants are entitled in terms of the aforesaid
Registration, until First Applicant passes away, to
exercise their
right of
habitatio
on the land on which the farmstead and outbuilding stood by
re-building the structures or by utilizing alternative means of

abode, whether it be movable or immovable.
3. The
Applicants are entitled to all other rights to which they were
entitled when they
occupied
the original farmstead and outbuilding, inter alia, a right of way
over the
property of the
Second Respondent to the land where the farmstead and outbuilding
were
situated, the right to construct sewage and drainage facilities and
the right to
connect
to an electrical source, if such source was used when the title deed
was
registered.
Electric costs would be for the account of the Applicants. If there
had
been a water source for the farmstead at the time of the registration
of
habitatio
,
such
source may once again be used, even if the source falls outside the
yard of the
farmstead.
4. The
applicants are also entitled to utilize the yard for purposes
of
a small vegetable
and
fruit garden for personal use.
5.
The second respondent must pay the costs of this application.
JCW
van Rooyen 20 April 2009
Acting Judge of the High
Court
For
the Applicant Ms Nadine Erasmus
(heads by GS Maritz) instructed by Marais Basson Inc c/o Savage and
Jooste & Adams Attorneys Pretoria.
For
the Second Respondent PJ Greyling instructed by Brauckmann Jooma p/a
Serfontein Viljoen & Swart, Pretoria.
1
“Willem
Fredrick Kidson shall for his lifetime be entitled to occupy the
farm stall on the farm for his own benefit. He shall
however be
responsible for the maintenance and upkeeping of the dwelling with
outbuilding. The seller shall however not be entitled
to lease the
premises to someone else other than for occupation for his immediate
family.”
2
1906 EDC 351.
3
Voet 7.8.8.
4
Cf
D
7.8.1-23;
De Groot
Inleidinge
2.44.4-10 and especially 2.44.8 and Voet
Commentarius
ad Pandectas
7.8.6; Van
Leeuwen
Het
Rooms Hollands Recht (1664)
1.11.6; also see Josson
Schets
van het Recht van de Zuid-Afrikaansche Republiek
(1897) 463; Van der Merwe
Sakereg
(1989) 524.
5
1922 EDL 69
, 79-80 .
6
S 5(3)(
d
)
and (
e
)
of the
Sectional Titles Act 95 of 1986
. See Van der Merwe and
Sonnekus
Sectional Titles,
Share Blocks and Time-Sharing
(Vol I) par 3-5.
7
1986 (4) SA
251(C).
8
Omne quod inaedificatur solo cedit (Just
Inst
2.1.29) and superficies solo cedit (Gai
Inst
273).
See
Sonnekus
and
Neels
Sakereg
Vonnisbundel
(1994)
641.
9
Praelectiones
ad De Groot
2.37.5.
10
Contra
Van der Merwe
Sakereg
535.
11
D
7.4.5.2.
12
D
8.1.15.1 read with Voet 8.3.12. Voet 8.4.17 founds an exception in
the case of the
servitus
oneris ferendi
.
Cf
Sonnekus and Neels
Sakereg
Vonnisbundel
(1994) at 550-551 and 579-580 and Van der Merwe
Sakereg
535.
This
consequence of the general principle of passivity was reaffirmed in
Low
Water Properties
(Pty)
Ltd and Another v Wahloo Sand CC
1999
(1) SA 655
(SE).
13
Cf. Westermann
Sachenrecht
(1960) 613 discussion of
eg
BGH 7, 268 at 272 and BGH 8, 58 at 63; Wolf E
Lehrbuch
des Sachenrechts
(1979) 553; Wilhelm
Sachenrecht
(1993) 625; Baur
Lehrbuch
des Sachenrechts
(1981)
276.
14
Op. cit.
§
123.1.4
15
Westermann (613) – the fixation with the tainted formulation as
if the right to free residence is dependent on certain rooms
or
areas misses the important point that it is the land that is
burdened as object of the real right, not the area within a
certain
room or building.
16
Op. cit. 553.
17
I wish to express my sincere gratitude to Prof Jean Sonnekus
(University of Johannesburg) for providing me
with
several of the texts quoted in this judgment.
18
P
raeter
habitationem quam habet, cui usus datus est deambulandi quoque et
gestandi ius habebit. sabinus et cassius et lignis ad
usum
cottidianum et horto et pomis et holeribus et floribus et aqua
usurum, non usque ad compendium, sed ad usum, scilicet non
usque ad
abusum: idem nerva, et adicit stramentis et sarmentis etiam usurum,
sed neque foliis neque oleo neque frumento neque
frugibus usurum.
sed sabinus et cassius et labeo et proculus hoc amplius etiam ex his
quae in fundo nascuntur, quod ad victum
sibi suisque sufficiat
sumpturum et ex his quae nerva negavit: iuventius etiam cum convivis
et hospitibus posse uti: quae sententia
mihi vera videtur: aliquo
enim largius cum usuario agendum est pro dignitate eius, cui
relictus est usus. sed utetur his, ut
puto, dumtaxat in villa: pomis
autem et oleribus et floribus et lignis videndum, utrum eodem loco
utatur dumtaxat an etiam in
oppidum ei deferri possint: sed melius
est accipere et in oppidum deferenda, neque enim grave onus est
horum, si abundent in
fundo.